2019 QCCA 1719, 2019 QCCA 1719

Droit de la famille — 191787 2019 QCCA 1719 COUR D’APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N° : 500-09-028449-197 (500-12-341498-180) DATE : 3 SEPTEMBRE 2019 CORAM : LES HONORABLES JACQUES CHAMBERLAND, J.C.A. FRANCE THIBAULT, J.C.A. MARIE-JOSÉE HOGUE, J.C.A. M... A...

PARTIE APPELANTE c. T... K...

PARTIE INTIMÉE ARRÊT RECTIFICATIF [ 1 ] Dans l'arrêt sur procès-verbal rendu le 29 août 2019, une erreur s'est glissée au paragraphe [11], on aurait dû lire « June 19, 2019 » au lieu de « July 19, 2019 ». [ 2 ] Par conséquent, il y a lieu de rectifier l'arrêt afin de remplacer le paragraphe [11] par le paragraphe suivant : [11] GRANTS leave to appeal from the decision rendered on June 19, 2019; JACQUES CHAMBERLAND, J.C.A. FRANCE THIBAULT, J.C.A. MARIE-JOSÉE HOGUE, J.C.A. M. M... A... Non représenté Me Maria Marotta Guzun et associés, avocats Pour l'intimée

Droit de la famille — 191787 2019 QCCA 1719 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-028449-197 ( 500-12-341498-180 ) MINUTES OF HEARING DATE: August 29, 2019 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. FRANCE THIBAULT, J.A. MARIE-JOSÉE HOGUE, J.A. APPLICANT M. A. Unrepresented RESPONDENT COUNSEL T. K. Mtre Maria Marotta ( Guzun et associés, avocats ) On appeal from a judgment rendered on June 19, 2019 by the Honourable Karen Kear-Jodoin of the Superior Court, District of Montreal . DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of a proceeding (Article 31 C.C.P.)

Clerk at the hearing : Mélanie Camiré Courtroom: Pierre-Basile-Mignault HEARING 14:07 Commencement of the hearing. Identification of counsel. 14:08 Discussion between the Court and Mtre Marotta. 14:09 Submissions by Mtre Marotta. 14:27 Recess of the hearing. 14:34 Resumption of the hearing. BY THE COURT: Unanimous judgment on the Application for leave to appeal – see page 3. 14:35 Discussion between the Court and Mr.

A. concerning the modalities for the sale of the condo. 14:49 Discussion between the Court and Mtre Marotta concerning the modalities for the sale of the condo. 14:50 Recess of the hearing. 15:10 Resumption of the hearing. BY THE COURT: Unanimous judgment on the merits of the appeal – see page 3. 15:16 Conclusion of the hearing. Mélanie Camiré, Clerk at the hearing JUDGMENT [1] Mr. M.

A. applies for leave to appeal from a judgment of the Superior Court rendered on June 19, 2019, on the basis of both articles 31 (judgment in the course of a proceeding) and 32 C.C.P. (case management measures). [2] The parties are involved in divorce proceedings instituted in December 2018. [ 3 ] On May 10, 2019, the parties were before Michaud J. One of the points in issue was the sale of the condominium serving as the family residence, which is still exclusively occupied by Mrs. T. K. and their child (14 years of age). [ 4 ] Michaud J. concluded that Mr.

A. did not have sufficient revenues to continue paying for the family residence and it had to be sold; he so ordered, with “the net proceeds of the sale [to] remain in the account in trust of the notary (subject to further representations) to be made by the parties” (minutes of the hearing, page 3 of 4). [ 5 ] Considering that the parties could not agree on the name of a real estate agent or broker, Michaud J. ordered “that if the parties do not agree on a name of a broker, they will submit 3 names each to the Court on June 19, 2019” (minutes of the hearing, page 3 of 4). [ 6 ] On June 19, 2019, the parties were before the Superior Court again for the specific purpose of designating a real estate broker.

After considering the postponement of the file to “next week [...] so I could see what progress is being made” (transcript, page 9), then to “next Friday” (p. 11), then to the “11 th of July, 12 th of July” (p. 11, 13 and 18), the motion judge adjourned the hearing on the motion for provisional measures and on the issue relating to the appointment of a real estate broker to January 22, 2020 (p. 27). [ 7 ] The judgment reads, in part, as follows: The Court orders the parties to find a real estate agent that is mutually satisfactory to both parties, failing which the judge hearing this matter on January 22, 23, and 24, 2020 shall appoint a real estate agent to proceed with the sale of the property; […] Recommends strongly that the parties resolve the issue of the choice of a real estate agent in order to facilitate expeditious sale of the common domicile; [ 8 ] The Court is of the view that, given Michaud J’s order dated May 10, 2019 that the family residence be sold and that a real

estate broker be designated by the Court on June 19, 2019 (failing the agreement of the parties on this issue) and the motion judge’s comment that the property had to be sold “quickly” (page 12) or “as quickly as possible” (page 15), the decision to postpone the appointment of a real estate broker to the latter part of January 2020 is likely to cause an “irremediable injury” to the petitioner (art. 31 C.C.P. ) and appears to be an “unreasonable” ruling (art. 32 C.C.P. ) [ 9 ] Leave to appeal must therefore be granted. [ 10 ] In order to expedite the sale of the family residence ordered by Michaud J. on May 10, 2019, the Court, sitting on the merits of the appeal, heard the parties both on the appointment of the real estate agent/broker and on the modalities of the sale.

FOR THESE REASONS, THE COURT: [ 11 ] GRANTS leave to appeal from the decision rendered on July 19, 2019; and, sitting on the merits of the appeal: [ 12 ] ALLOWS the appeal; [ 13 ] STRIKES the two paragraphs of the judgment that pertain to the designation of a real estate agent, on pages 1 and 2 of the minutes of the hearing dated June 19, 2019. [ 14 ] DESIGNATES Mr.

Clément Depelteau, chartered real estate broker (Re/Max Harmonie branch), to act as the real estate broker for the sale of the parties’ family residence located at […], Town A, QC, […], for a term of six (6) months; at a commission of no more than 7% for his services; the list price to be set by the real estate broker at the market value after consultation with both parties separately, but at no less than $200 000; all offers to purchase to be submitted to both parties; all offers to purchase to include a clause providing for a period of sixty (60) days after the offer to purchase is accepted, both for the contract of sale to be signed before a notary and for the property to be vacated by Mrs.

K. and the parties’ child; [ 15 ] ORDERS that both parties enter into a standard brokerage contract with Mr. Clément Depelteau and/or the real estate agency, containing, in addition to the standard conditions, the conditions mentioned in the preceding paragraph; [ 16 ] CONFIRMS that Mrs.

K. has the exclusive use of the furniture and moveables garnishing the family residence and will continue to have the exclusive use of the furniture and moveables after the sale, subject to an eventual judgment deciding otherwise within the scope of the divorce proceedings; [ 17 ] ORDERS both parties to cooperate with the real estate broker in his efforts to sell the family residence; [ 18 ] MAINTAINS all other conclusions of the judgment rendered on June 19, 2019; [ 19 ] Without legal costs given the nature of the dispute. JACQUES CHAMBERLAND, J.A. FRANCE THIBAULT, J.A. MARIE-JOSÉE HOGUE, J.A.